Citation Nr: 21014915 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 17-25 560 DATE: March 16, 2021 ORDER Service connection for vertigo (claimed as dizziness) is denied. REMANDED Service connection for migraines (claimed as headaches) is remanded. FINDINGS OF FACT 1. The Veteran has a current disability of benign paroxysmal positional vertigo. 2. The Veteran experienced an in-service head injury in October 2000. 3. The vertigo did not have its onset in service and is not otherwise etiologically related to service, including the October 2000 in-service head injury. CONCLUSION OF LAW The criteria for service connection for vertigo have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.326(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1999 to June 2003. This matter is on appeal from an October 2014 rating decision issued by the Regional Office (RO) in Nashville, Tennessee. The Veteran testified in Nashville, Tennessee, at a Board videoconference hearing in May 2019 before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. These matters were previously before the Board in June 2020. The Board found that the December 2019 VA examination opinions were not adequate and remanded both issues in order to obtain VA examination addendum opinions. VA examinations and addendum opinions were submitted to the record in July 2020. A supplemental statement of the case was issued in August 2020, denying both issues. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326. In February 2021 correspondence, the Veteran claimed that she was “refused the right to receive a full copy of [her] military records” because the records could not be found. The Veteran was notified that the service treatment records (STRs) were not available for the RO’s review in adjudicating the instant issues in a March 2005 notification letter. The RO has made reasonable efforts to obtain relevant records and evidence in this case. The information and evidence that has been associated with the record includes the available service treatment records, service personnel records, post-service VA and private treatment (medical) records, and lay statements from the Veteran. The RO attempted to locate the missing service treatment records on multiple occasions. The Veteran was informed of the missing records and in March 2005 was offered an opportunity to submit any such records in her possession. Formal findings on the unavailability of complete service treatment records were made in a March 2005 VA memorandum and the Veteran was informed of such. 38 C.F.R.§ 3.159(e). Further attempts to obtain the records would be futile. In March 2005, a letter was sent to the Veteran to explain the appeals process and the claims were adjudicated. For these reasons, the Board finds that VA has obtained all identified and available service and post-service treatment and personnel records for the Veteran. Despite these efforts, it appears that there are still records missing. In such situations, where STRs are missing, the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law, however, does not lower the legal standard for proving a claim for service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all evidence that may be favorable to a veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). Legal Authority for Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). 1. Service Connection for Vertigo is Denied. The Veteran contends that the current vertigo was caused by an in-service head injury. The Veteran claims that she has experienced vertigo symptoms, namely dizziness, since the in-service head injury. See May 2019 Transcript. After reviewing the evidence of record, both lay and medical, the Board finds there is a current disability of benign paroxysmal positional vertigo. See July 2020 VA Examination. The evidence shows that the Veteran sustained a head injury in service in October 2000. According to October 2000 service treatment records, the Veteran sought treatment for a head injury. At the time, the Veteran denied loss of consciousness, dizziness, change in vision, nausea, vomiting, numbness, tingling, or any other complaints. The military medical examiner recommended putting ice on the wound until the edema decreased and assessed that the Veteran was fit for full duty. The Board also finds that, while some but not all of the STRs were associated with the record, the Veteran credibly testified during the May 2019 Board videoconference hearing and has repeatedly reported that she injured her head in service. During the May 2019 Board videoconference, the Veteran testified that her head was hit by a bed rack. The Veteran explained that she was treated with an over-the-counter pain medication because there were limited medical resources aboard the ship while she was serving in the Navy. The Veteran claimed that she has experienced vertigo since this in-service injury. See May 2019 Transcript. The weight of the evidence is against finding that the in-service head injury caused the current vertigo. While the Veteran is competent to report vertigo symptoms, she is not competent to connect the current vertigo to the October 2000 in-service head injury because the vertigo involves multiple possible etiologies, observable vertigo symptoms (like dizziness) are common and overlap with many other disorders, and side effects attributed to head injuries involve special knowledge of several bodily systems. In the July 2020 VA examination, the VA examiner opined that the vertigo was less likely than not related to the October 2000 in-service injury because when being treated the Veteran denied loss of consciousness, dizziness, and change in vision. There are no private medical opinions of record. For these reasons, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for vertigo. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 2. Service Connection for Migraines is Remanded. The Veteran contends that the migraines or headaches were caused by an in-service head injury. The Veteran claims that she has experienced headache since the in-service injury. See May 2019 Transcript. Pursuant to the June 2020 Board remand, the Veteran submitted to a VA examination in July 2020. The VA examiner opined that the migraines were less likely than not related to the October 2000 in-service injury because there is no evidence of headaches until 12 years after service separation. The VA examiner does not rely on any additional reasoning to substantiate the negative opinion. The July 2020 unfavorable nexus opinion is based solely on the lack of documentation of treatment for many years after service separation, which is a legal error if such absence is the sole reason for a negative opinion; as a result, the July 2020 VA examination is not probative. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the veteran’s health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service). The issue of service connection for migraines is REMANDED for the following action: Request that a VA medical professional review the electronic file and provide the VA medical opinion requested below. The relevant documents in the electronic file should be made available to, and be reviewed by, the VA examiner. The VA examiner should note such review in the opinions. If the VA examiner determines that additional examination(s) of the Veteran is necessary to provide reliable opinions, such examination(s) should be scheduled; however, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The VA examiner should provide the following opinion with supporting rationale. Is it at least as likely as not (50 percent or higher degree of probability) that the current migraine disorder was caused by or is otherwise related to service? Please specifically address the October 2000 service treatment record reflecting that the Veteran was hit on the head with a rack during service. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Costantino, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.